Office
of the General Counsel
A
BRIEF OVERVIEW OF THE FEDERAL TRADE COMMISSION'S
INVESTIGATIVE AND LAW ENFORCEMENT AUTHORITY (1)
MAY
1995
I. INVESTIGATIVE
AUTHORITY
- A. In
General
- The Commission may "prosecute any
inquiry necessary to its duties in any
part of the United States" (FTC Act
Sec. 3, 15 U.S.C. Sec. 43) and may
"gather and compile information
concerning, and * * * investigate from
time to time the organization, business,
conduct, practices, and management of any
person, partnership, or corporation
engaged in or whose business affects
commerce, excepting banks, savings and
loan institutions * * * Federal credit
unions * * * and common carriers * *
*." (FTC Act Sec. 6(a), 15 U.S.C.
Sec. 46(a)).(2)
-
- B. Specific
Investigative Powers
- The Commission's specific investigative
powers are defined in Sections 6, 9, and
20 of the FTC Act, 15 U.S.C. Secs. 46,
49, and 57b-1, which authorize various
forms of compulsory process. In addition,
the premerger notification provisions in
Section 7A of the Clayton Act, 15 U.S.C.
Sec. 18a, prohibit consummation of
covered acquisitions until the requested
information is provided, thus effectively
enabling the Commission to obtain
information regarding such acquisitions.
-
- Section 9 of the FTC Act authorizes the
Commission to "require by subpoena
the attendance and testimony of witnesses
and the production of all such
documentary evidence relating to any
matter under investigation" (15
U.S.C. Sec. 49). Any member of the
Commission may sign a subpoena, and both
members and "examiners"
(employees) of the agency may administer
oaths, examine witnesses, and receive
evidence.
-
- Under Commission Rule 2.7 (16 C.F.R. Sec.
2.7), a party may raise objections to a
subpoena by filing a petition to quash.
Such petitions are resolved by a
designated Commissioner, and the
designated Commissioner's ruling may
thereafter be appealed to the full
Commission.
-
- If a party fails to comply with a
subpoena (either without filing a
petition to quash, or after a duly filed
petition is denied), the Commission may
seek enforcement of the subpoena in
"[a]ny of the district courts of the
United States within the jurisdiction of
which such inquiry is carried on"
(15 U.S.C. Sec. 49). After the Commission
files its petition to enforce a subpoena,
and following receipt of any response
from the subpoena recipient, the court
may enter an order requiring compliance.
Refusal to comply with a court
enforcement order is subject to penalties
for contempt of court.
-
- The subpoena provisions of Section 9 are
used routinely by the Bureau of
Competition to investigate alleged unfair
methods of competition and other
antitrust violations. Prior to 1980, the
Bureau of Consumer Protection also used
subpoenas for investigations. However, as
the result of the FTC Improvements Act of
1980, which added a new Section 20 of the
FTC Act, 15 U.S.C. Sec. 57b-1, the Bureau
of Consumer Protection may now use only
"civil investigative demands"
("CIDs") to investigate
possible "unfair or deceptive acts
or practices". By virtue of the FTC
Act Amendments of 1994, the Bureau of
Competition also may use CIDs (in
addition to subpoenas) for investigations
of possible antitrust violations.
-
- The scope of a civil investigative demand
is different from that of a subpoena.
Whereas a subpoena may be employed to
seek existing documentary evidence or
oral testimony, a CID may also require
that the recipient "file written
reports or answers to questions" (15
U.S.C. Sec. 57b-1(c)(1)). Express
provisions in Section 20 authorize the
issuance of CIDs requiring the production
of tangible things and provide for
service of CIDs upon entities not found
within the territorial jurisdiction of
any court of the United States.
-
- As with subpoenas, the recipient of a
civil investigative demand may file a
petition to quash. Likewise, the
Commission may petition a federal
district court to enforce the CID in the
event of noncompliance, although
permissible venue is narrower in a CID
enforcement action than in a subpoena
enforcement case.
- Another investigative tool, this one
available to both enforcement Bureaus,
appears in Section 6 of the FTC Act, 15
U.S.C. Sec. 46. Section 6(b) empowers the
Commission to require the filing of
"annual or special * * * reports or
answers in writing to specific
questions" for the purpose of
obtaining information about "the
organization, business, conduct,
practices, management, and relation to
other corporations, partnerships, and
individuals" of the entities to whom
the inquiry is addressed. As with
subpoenas and CID's, the recipient of a
6(b) order may file a petition to quash,
and the Commission may seek a court order
requiring compliance. In addition, the
Commission may commence suit in Federal
court under Section 10 of the FTC Act, 15
U.S.C. Sec. 50, against any party who
fails to comply with a 6(b) order after
receiving a notice of default from the
Commission. After expiration of a
thirty-day grace period, the defaulting
party is liable to a penalty of $100 for
each day of noncompliance.
-
- The Commission's 6(b) authority enables
it to conduct wide-ranging economic
studies that do not have a specific law
enforcement purpose. (An example is the
"Line-of-Business" study
conducted in the 1970's, which required
corporations to report line of business
profitability and other data on a yearly
basis.) Section 6(b) also enables the
Commission to obtain answers to specific
questions as part of an antitrust law
enforcement investigation, where such
information would not be available
through subpoena because there is no
document that contains the desired
answers.
-
- Among its other subsections, Section 6
authorizes the Commission to investigate
compliance with Justice Department
antitrust decrees on its own initiative
or upon request of the Attorney General
(15 U.S.C. Sec. 46(c)), and to
investigate violations of antitrust
statutes upon request of the President or
of either House of Congress (15 U.S.C.
Sec. 46(d)). Section 6 also authorizes
the Commission to "make public from
time to time" portions of the
information that it obtains, where
disclosure would serve the public
interest (15 U.S.C. Sec. 46(f)).
-
- In the merger area, the statute on which
the Commission principally relies in
conducting investigations is Section 7A
of the Clayton Act, 15 U.S.C. Sec. 18a,
which was added by the Hart-Scott-Rodino
Act of 1976. Under Section 7A, the
parties to an acquisition of the
requisite size must report the
transaction to the government and wait a
specified number of days before
consummation. Should the Commission or
the Department of Justice decide that
further examination is warranted, they
may seek additional information by
issuing a so-called "second
request". When such a request is
issued, the waiting period is extended
and the subject acquisition may not be
consummated until the conclusion of a
specified period following the parties'
compliance with the request. Although
parties are not technically obligated to
comply with a second request, as they are
with a subpoena, the price of
noncompliance is that consummation of the
transaction would be illegal. Thus, the
premerger notification provisions of the
Clayton Act are a powerful incentive for
companies to submit information that the
government needs to evaluate corporate
acquisitions. Should the parties merge
without observing the requirements of the
Clayton Act, the Commission may seek both
injunctive relief and civil penalties, as
appropriate, under Section 7A(g) of the
Clayton Act.
-
- Under the recent International Antitrust
Enforcement Assistance Act
("IAEAA"), the FTC may invoke
all of its investigative tools to obtain
materials or information from domestic
sources for the use of foreign antitrust
authorities, and may seek investigative
assistance from those authorities,
pursuant to multilateral assistance
agreements established under the IAEAA.
New FTC Act Sections 6(i) and 20(a)(8)(C)
incorporate the IAEAA investigative
authority into the FTC Act.
II. ENFORCEMENT
AUTHORITY
When the Commission completes a law
enforcement investigation, enforcement action may
be undertaken if the Commission finds
"reason to believe" that the law is
being violated. The Commission utilizes certain
of its statutory powers to enforce both consumer
protection and antitrust laws, but there are also
important differences that make separate
discussion of the two missions worthwhile.
- A. Consumer
Protection
- The basic "consumer protection"
statute enforced by the Commission is
Section 5(a) of the FTC Act, which
states, inter alia, that "unfair or
deceptive acts or practices in or
affecting commerce are declared
unlawful" (15 U.S.C. Sec. 45(a)(1)).
"Unfair" practices are defined
to mean those that "cause[] or [are]
likely to cause substantial injury to
consumers which is not reasonably
avoidable by consumers themselves and not
outweighed by countervailing benefits to
consumers or to competition" (15
U.S.C. Sec. 45(n)). In addition, the
Commission enforces a variety of
so-called "special" statutes
(e.g., the Truth-in-Lending Act, the Fair
Credit Reporting Act, the Wool Products
Labeling Act) that prohibit
specifically-defined trade practices and
specify that violations are to be treated
as if they were "unfair or
deceptive" acts or practices under
Section 5(a).
-
- The Commission enforces the substantive
requirements of consumer protection law
through both administrative and judicial
processes, as described below.
-
- 1.
Administrative Enforcement
- In "administrative
enforcement," the initial
determination that a particular
practice violates the law is made
by the Commission itself in an
adjudicative or rulemaking
proceeding.
-
- (a)
Adjudication
Under Section
5(b) of the FTC Act, the
Commission may attack
"unfair or deceptive
practices" (or
violations of the various
"special
statutes") through
maintenance of an
administrative
adjudication. When there
is "reason to
believe" that a law
violation has occurred,
the Commission may issue
a complaint setting forth
its charges. If the
respondent elects to
settle the charges, it
may sign a consent
agreement (without
admitting liability) by
which it consents to
entry of a final order
and waives all right to
judicial review. If the
Commission accepts such a
proposed consent, it
places the order on the
record for sixty days of
public comment before
determining whether to
make the order final.
-
- If the respondent elects
instead to contest the
charges, the complaint is
adjudicated before an
administrative law judge
("ALJ") in a
trial-type proceeding.
The prosecution is
conducted by FTC
"complaint
counsel," who are
staff from the Bureau of
Consumer Protection or a
regional office. Upon
conclusion of the
hearings, the ALJ issues
an "initial
decision" setting
forth his findings of
fact and conclusions of
law, and recommending
either entry of an order
to cease and desist or
dismissal of the
complaint. Either
complaint counsel or
respondent, or both, may
appeal the initial
decision to the full
Commission.
-
- Upon appeal of an initial
decision, the Commission
receives briefs, holds
oral argument, and
thereafter issues its own
final decision and order.
The Commission's final
decision is appealable by
any respondent against
which an order is issued.
The respondent may file a
petition for review with
any court of appeals
within whose jurisdiction
the respondent
"resides or carries
on business" or
where the challenged
practice was employed
(FTC Act, Section 5(c),
15 U.S.C. Sec. 45(c)). If
the court of appeals
affirms the Commission's
order, the court enters
its own order of
enforcement. The party
losing in the court of
appeals may seek review
by the Supreme Court.
-
- A Commission order
(except insofar as it
requires divestiture)
becomes final (i.e.,
binding on the
respondent) 60 days after
it is served, unless the
order is stayed by the
Commission or by a
reviewing court.
Divestiture orders become
final after all judicial
review has been completed
(or after the time for
seeking review has
elapsed without review
being sought). If a
respondent violates a
final order, it is liable
for a civil penalty of up
to $10,000 for each
violation. The penalty is
assessed by a district
court in a suit brought
to enforce the
Commission's order. The
court may also issue
"mandatory
injunctions" and
"such other and
further equitable
relief" as is deemed
appropriate. (FTC Act,
Section 5(l), 15 U.S.C.
Sec. 45(l)). In addition
(after all judicial
review of its order is
complete), the Commission
may seek consumer redress
from the respondent in
district court for
consumer injury caused by
the conduct that was at
issue in the
administrative
proceeding. In such a
suit, which lies under
Section 19 of the FTC
Act, 15 U.S.C. Sec. 57b,
the Commission must
demonstrate that the
conduct was such as a
"reasonable man
would have known under
the circumstances was
dishonest or
fraudulent."
-
- Where the Commission has
determined in an
adjudicatory proceeding
that a practice is unfair
or deceptive and has
issued a cease and desist
order that is no longer
subject to judicial
review, the Commission
may also obtain civil
penalties from
non-respondents who
thereafter violate the
standards articulated by
the Commission. To
accomplish this, the
Commission must show that
the violator had
"actual knowledge
that such act or practice
is unfair or deceptive
and is unlawful"
under Section 5(a)(1) of
the FTC Act. (FTC Act,
Section 5(m)(1)(B); 15
U.S.C. Sec. 45(m)(1)(B)).
To prove "actual
knowledge," the
Commission typically
shows that it had
provided the violator
with a copy of the
Commission determination
in question, or a
"synopsis" of
that determination. The
virtue of Section
5(m)(1)(B) is that it
limits wrongdoers to only
a single bite of the
apple before they are
subject to monetary
penalties.
-
- (b)
Rulemaking
In lieu
of attacking unfair or
deceptive practices by
administrative
adjudications against
individual respondents,
the Commission may use
trade regulation rules to
remedy unfair or
deceptive practices that
occur on an industry-wide
basis. Under Section 18
of the FTC Act, 15 U.S.C.
Sec. 57a, the Commission
is authorized to
prescribe "rules
which define with
specificity acts or
practices which are
unfair or deceptive acts
or practices in or
affecting commerce"
within the meaning of
Section 5(a)(1) of the
Act. The statute requires
that Commission
rulemaking proceedings
involve "informal
hearings" at which
interested parties are
accorded limited rights
of cross examination.
Before commencing a
rulemaking proceeding the
Commission must also have
reason to believe that
the practices to be
addressed by the
rulemaking are
"prevalent" (15
U.S.C. Sec. 57a(b)(3)).
-
- Once the Commission has
promulgated a rule,
anyone who violates the
rule "with actual
knowledge or knowledge
fairly implied on the
basis of objective
circumstances that such
act is unfair or
deceptive and is
prohibited by such
rule" is liable for
civil penalties of up to
$10,000 per violation.
The Commission obtains
such penalties by filing
a suit in district court
under Section 5(m)(1)(A)
of the FTC Act, 15 U.S.C.
Sec. 45(m)(1)(A). In
addition, any person who
violates a rule
(irrespective of the
state of knowledge) is
liable for injury caused
to consumers by the rule
violation. The Commission
may pursue such recovery
in a suit for consumer
redress under Section 19
of the FTC Act, 15 U.S.C.
Sec. 57b.
-
- 2.
Judicial Enforcement
As the preceding
section illustrates, even where
the Commission determines through
adjudication or rulemaking that a
practice is unfair or deceptive,
the Commission must still seek
the aid of a court to obtain
civil penalties or consumer
redress for violations of its
orders to cease and desist or
trade regulation rules. In this
section, we discuss the
Commission's ability to challenge
a practice directly in court,
without first making a final
agency determination that the
challenged conduct is unlawful.
-
- Section 13(b) of the FTC Act, 15
U.S.C. Sec. 53(b), authorizes the
Commission to seek preliminary
and permanent injunctions to
remedy "any provision of law
enforced by the Federal Trade
Commission." Under the first
proviso of Section 13(b),
whenever the Commission has
"reason to believe"
that any party "is
violating, or is about to
violate" a provision of law
enforced by the Commission, the
Commission may ask the district
court to enjoin the allegedly
unlawful conduct, pending
completion of an FTC
administrative proceeding to
determine whether the conduct is
unlawful. Further, under the
second proviso of Section 13(b),
the Commission may seek, and
"in proper cases" the
court may grant, a permanent
injunction.
-
- Section 13(b) was added to the
FTC Act as part of amendments to
the Trans-Alaska Pipeline Act of
1973. At the time, the provision
was expected to be used
principally for obtaining
preliminary injunctions against
corporate acquisitions, pending
completion of FTC administrative
hearings. During the 1970's,
Section 13(b) was used by the
Commission mainly in this way,
and the Commission continues to
make frequent use of the
provision in its merger
enforcement program. However, on
occasion in the 1970's, the
Commission also used the
"preliminary
injunction" proviso of
Section 13(b) to obtain
injunctions against ongoing
campaigns of deceptive
advertising, pending a final FTC
adjudication. (Section 13(a) of
the Act, passed in 1938, had
previously authorized the
Commission to seek injunctive
relief in cases of "false
advertisements" for
"food, drugs, devices, or
cosmetics.")
-
- In the early and mid-1980's the
Commission began to make
widespread use of the
"permanent injunction"
proviso of Section 13(b) in its
consumer protection program to
challenge cases of garden variety
fraud and deception. Further, the
Commission argued that the
statutory reference to
"permanent injunction"
entitled the Commission to obtain
an order not only permanently
barring deceptive practices, but
also imposing various kinds of
monetary equitable relief (e.g.,
restitution and rescission of
contracts) to remedy past
violations. The Commission also
argued that, to preserve the
possibility of ultimate monetary
equitable relief, it should be
able to obtain a freeze of assets
and imposition of temporary
receivers in appropriate cases.
-
- The courts have uniformly
accepted the Commission's
construction of Section 13(b),
with the result that most
consumer protection enforcement
is now conducted directly in
court under Section 13(b), rather
than by means of administrative
adjudication. A suit under
Section 13(b) is preferable to
the adjudicatory process outlined
above because, in a suit under
Section 13(b), the court may
award both prohibitory and
monetary equitable relief in one
step, whereas when the Commission
proceeds by administrative
adjudication, it must bring a
subsequent suit against the
respondent under Section 19 to
obtain consumer redress. In
addition, a judicial injunction
becomes effective immediately
upon issuance, whereas a
Commission order to cease and
desist does not take effect until
60 days after service.
-
- Of course, adjudication also
offers certain advantages over
direct judicial enforcement. In
particular, in an adjudicatory
proceeding, the Commission has
the first opportunity to make
factual findings and articulate
the relevant legal standard. On
review, the court is obliged to
affirm the Commission's
fact-findings if supported by
substantial evidence. A reviewing
court must also accord
substantial deference to
constructions of the FTC Act
articulated by the Commission in
adjudication or rulemaking. In a
13(b) suit, by contrast, the
Commission receives no greater
deference than would any
government plaintiff. Thus, where
a case involves novel legal
issues or fact patterns, the
Commission has tended to prefer
administrative adjudication.
-
- B.
Antitrust
- The Commission enforces various antitrust
laws through its Bureau of Competition.
The two most significant statutory
provisions are Section 5(a) of the FTC
Act and the Clayton Act. Section 5(a) of
the FTC Act, 15 U.S.C. Sec. 45(a),
prohibits, inter alia, "unfair
methods of competition."
"Unfair methods of competition"
include any conduct that would violate
the Sherman Antitrust Act. The Clayton
Act prohibits corporate acquisitions that
may tend substantially to lessen
competition (Section 7, 15 U.S.C. Sec.
18) and also bars certain forms of price
discrimination (Section 2 of the
"Robinson-Patman Act," 15
U.S.C. Secs. 13-13b). As with its
consumer protection responsibilities, the
Commission uses both administrative and
judicial remedies to enforce the law.
-
- 1.
Administrative Enforcement
-
- a.
Adjudication
The Commission
may challenge alleged
"unfair methods of
competition," as it
does "unfair or
deceptive acts or
practices," by
commencing an
administrative
adjudicatory proceeding
under Section 5(b) of the
FTC Act. Where a
violation of the Clayton
Act is alleged, the
Commission proceeds under
Section 11 of the Clayton
Act (15 U.S.C. Sec. 21),
which parallels Section
5(b) of the FTC Act in
authorizing adjudicatory
proceedings. Procedures
for judicial review of
FTC antitrust orders are
the same as those for
review of consumer
protection orders.
Likewise, violators of
antitrust orders are
subject to suit for civil
penalties under FTC Act
Section 5(l) or Clayton
Act Section 11(l), as
appropriate.
-
- b.
Rulemaking
Section
18 of the FTC Act, which
authorizes the
promulgation of trade
regulation rules, applies
only to "unfair or
deceptive acts or
practices." Whether
the Commission has
authority to promulgate
rules that define
"unfair methods of
competition" is an
open question. Prior to
enactment of Section 18,
the Commission asserted
that it had rulemaking
authority by virtue of
Section 6(g), which
authorizes the Commission
"to make rules and
regulations for the
purpose of carrying out
the provisions of this
subchapter."
However, nearly all of
the rules that the
Commission actually
promulgated under Section
6(g) were consumer
protection rules. In
1975, Section 18 became
the exclusive rulemaking
provision for consumer
protection cases. The
Commission has not
attempted a competition
rulemaking since Section
18 took effect. In any
event, the only sanction
for violation of a rule
promulgated under Section
6(g) would be entry of an
administrative order, or
a judicial injunction,
prohibiting repetition of
the violation. The
monetary penalties
available to redress
violations of consumer
protection rules issued
under Section 18 are not
available for Section
6(g) rules.
-
- 2.
Judicial Enforcement
As discussed
above, Section 13(b) empowers the
Commission to obtain preliminary
and permanent injunctive relief
for violations of any provision
of law that the Commission
enforces. In the competition
context, the Commission has used
Section 13(b) primarily for the
purpose of obtaining preliminary
injunctive relief against
corporate acquisitions pending
completion of an FTC
administrative proceeding. The
Commission ordinarily does not
seek permanent injunctions in
competition cases, preferring to
retain for itself the
adjudication of the merits in
such matters. There is, however,
no legal reason why the
Commission could not obtain
permanent injunctive relief
against an antitrust violation in
an appropriate case, and perhaps
also restitution for injury
suffered by consumers (e.g., the
refund of overcharges
attributable to price-fixing). In
the one litigated competition
case in which the Commission
sought a permanent injunction,
the district court held that it
was empowered to award
restitution, but ultimately
dismissed the case on the merits.
III. LITIGATING
AUTHORITY
The preceding sections have described a
variety of actions that may be pursued in federal
court against violators of the laws enforced by
the Commission. The Commission has independent
authority to litigate some of these cases in its
own name, by its own attorneys. The scope of this
authority is described below.
Except as otherwise provided by law, the
Attorney General is responsible for the conduct
of all litigation in which the United States, or
one of its agencies, is a party (28 U.S.C. Sec.
516). Section 16 of the FTC Act, 15 U.S.C. Sec.
56, specifically authorizes the Commission to
represent itself by its own attorneys in four
categories of cases: (1) suits for injunctive
relief under Section 13 of the FTC Act, 15 U.S.C.
Sec. 53; (2) suits for consumer redress under
Section 19 of the FTC Act, 15 U.S.C. Sec. 57b;
(3) petitions for judicial review of FTC rules or
orders; and (4) suits to enforce compulsory
process under Sections 6 and 9 of the FTC Act, 15
U.S.C. Secs. 46 and 49.(3)
In addition to defining four classes of cases
in which the Commission may automatically
represent itself, Section 16 also provides that
with respect to "any civil action involving
this subchapter (including an action to collect a
civil penalty)," the Commission may
represent itself if the Attorney General does not
agree to do so after 45-days notice. See 15
U.S.C. Sec. 56(a)(1). This catchall provision
enables the Commission to prosecute and defend by
its own attorneys a wide variety of cases that
the Department of Justice declines to litigate
(particularly civil penalty actions under
Sections 5(l) and 5(m) of the FTC Act).
Separate rules govern representation before
the Supreme Court. Section 16(a)(3), 15 U.S.C.
Sec. 56(a)(3), defines certain circumstances
under which the Commission may appear in the
Supreme Court "in any civil action in which
the Commission represented itself [in the courts
below] pursuant to [15 U.S.C. 56(a)(1) or
(2)." Specifically, the Commission may
represent itself if it requests authority to do
so from the Solicitor General within 10 days of
the lower court judgment, and the Solicitor
General, within 60 days after entry of the
judgment, either authorizes the Commission's
appearance, declines to represent the Commission,
or fails to respond to the request.(4)
In addition to these specific grants of
representational authority, there are several
situations in which the Department of Justice may
appoint Commission attorneys as special United
States Attorneys to represent the United States
in litigation conducted by the Department of
Justice. See Telemarketing and Consumer Fraud and
Abuse Prevention Act, Sec. 9, Pub. L. No.
103-297, 108 Stat. 1545 (1994) (appointment of
Commission attorneys to prosecute criminal
contempt); Memorandum of Agreement Between the
Department of Justice and the Federal Trade
Commission -- Premerger Penalties, 4 Trade Reg.
Rep. ¶ 9853 at p. 17,356 (appointment of
Commission attorneys to prosecute civil penalty
actions under 15 U.S.C. Sec. 18a(g)(1) for
violation of premerger reporting requirements);
see also 28 U.S.C. Secs. 515, 543 appointment of
special United States attorneys).
(1) This memo focuses exclusively on law
enforcement by the FTC. Appendices A and B are
charts that synopsize the allocation of antitrust
and consumer protection enforcement powers to the
Commission and other entities like the Department
of Justice, the states, and private persons.
(2) "Corporation"
is defined to include any company, trust or
association, incorporated or unincorporated,
"which is organized to carry on business for
its own profit or that of its members." (FTC
Act Sec. 4, 15 U.S.C. Sec. 44).
(3) Section
16, added to the FTC Act in 1975, does not
specifically mention suits to enforce Civil
Investigative Demands, as CID authority was not
added to the Commission's investigatory
repertoire until 1980. However, Section 20 of the
FTC Act, which governs issuance of CID's,
provides that a suit to enforce a CID may be
prosecuted by the Commission "through such
officers or attorneys as it may designate"
(15 U.S.C. Sec. 57b-2(e)). The only other statute
that expressly vests the Commission with
representational authority is the Clayton Act,
which provides that injunctive relief for
violations of the premerger notification
requirements may be granted by a district court
"upon application of the Federal Trade
Commission or the Attorney General" (15
U.S.C. Sec. 18a(g)(2)).
(4) On three of the four occasions in the
1980's in which the Commission was party to a
case before the Supreme Court, it was represented
by its own attorneys. In two of those cases, the
Commission obtained a grant of certiorari after
the Solicitor General had declined to file a
petition on the Commission's behalf.
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